“Section 4(1) places a bar on a plaintiff pleading ‘benami’, while Section 4(2) places a bar on a defendant pleading ‘benami’, after the coming into force of the Act. In this context, it would be anomalous if the bar in Section 4 is not applicable if a suit pleading ‘benami’ is already filed prior to the prescribed date, and it is treated as applicable only to suit which he filed thereafter. It would have the effect of classifying the so-called ‘real’ owners into two classes— those who stand in the position of plaintiffs and those who stand in the position of defendants. This may be clarified by means of an illustration. A and Bare ‘real’ owners who have both purchased properties in say 1970, in the names of C and D respectively who are ostensible owners viz. benamidars. A files a suit in February 1988 i.e. before the coming into force of the Act against C for a declaration of his title saying that C is actually holding it as his benamidar. According to the petitioner's argument, such a plea would be open to A even after coming into force of the Act, since the suit has already been laid. On the other hand, if D files a suit against B at the same for declaration and injunction, claiming himself to be the owner but B's opportunity to file a written statement comes in say November 1988 when the Act has already come into force, he in his written statement cannot plead that D is a benamidar and that he, B is the real owner. Thus A and B, both ‘real’ owners, would stand on a different footing, depending upon whether they would stand in the position of plaintiff or defendant. It is respectfully submitted that such a differential treatment would not be rational or logical.”
